LEVEL 3 – UNIT 6 – EMPLOYMENT LAW

SUGGESTED ANSWERS – JANUARY 2016

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2016 examinations. The suggested answers do not for all questions
set out all the points which students may have included in their responses to the
questions. Students will have received credit, where applicable, for other points
not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.

SECTION A

1. Three sources of employment law are Case law, EU law and statute law.

2. The control test is used to determine employment status i.e. to decide

whether a person is an employee or self-employed. The control test is
whether the employer has control over what an employee does and how
they do it.

3. Three express terms that an employer may include in a contract of

employment to protect their business interests include garden leave
clauses, mobility clauses and restrictive covenants.

4. The definition of disability under s.6 of the Equality Act 2010 is that the
employee has a physical or mental impairment that has a substantial and
long term effect on their ability to carry out normal day to day activities.

5. Three situations where a claim for wrongful dismissal can be brought are
when an employee is dismissed with no notice; where an employee is
dismissed with inadequate notice or where an employee is dismissed
without PILON. Summary dismissal of an employee may be lawful if the
employee has repudiated the contract.

6. The legal definition of victimisation is set out in s.27 of the Equality Act
2010. It is where a person is subject to a detriment because they
enforced/tried to enforce their own or someone else’s legal right to be
protected from discrimination. This is illustrated in St Helen’s Borough
Council v Derbyshire & others (2007).

7. Three ways in which a contract of employment can be brought to an end

include:

• Dismissal
• Agreement
• Resignation

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8. Section 13 of the Equality Act 2010 provides that an employee may claim
direct discrimination if they are treated less favourably due to a protected
characteristic. This includes discrimination by association and discrimination
by association.

9. If an employee started work on or after 6 April 2012 they need to have

been continuously employed for two years. If the employee started work on
or before 5 April 2012 they need to have been continuously employed for
one year.

10. The minimum statutory notice period that an employee must give an
employer is one week.

SECTION B

Scenario 1 Questions

1. These could include, for example, the right not to be unfairly dismissed, so
that an employee cannot be dismissed after 2 years without a fair reason.
Alternatively, employees are entitled to be paid the minimum wage under
the National Minimum Wage Act 1998.

2. Jon will claim he is an employee as his wages are paid net of tax and NI
whereas the self-employed are usually paid gross. The fact that Jon wears a
uniform, a jacket with Kempston Kennels on it, would also indicate that he
is an employee. There is a power of substitution in Jon’s contract of
employment which means that he can send another worker to do his job.
On two occasions, he has sent his wife and friend to do his job. In the
Ready Mixed Concrete (1968) case, personal service was determined to be
fundamental to a contract of service. The issue of a power of substitution
was reviewed in Macfarlane & Another v Glasgow City Council (2001) where
the court found that, in limited circumstances, a right of substitution can be
included in a contract of service depending on the degree of control by
employer. Here, Kempston Kennels has control with an approved list. Here,
Jon is likely to be employee.

3. Kempston Kennels should have followed their own procedure/ACAS Code of

Practice 1. Kempston Kennels should have investigated the allegations and
established the facts. They should have confirmed the specific allegations in
writing and invited Jon to a disciplinary meeting to discuss the problem. Jon
should have been permitted to be accompanied to that meeting. Kempston
Kennels should have decided on the appropriate action they intended to
take and given Jon the opportunity to appeal that decision. The appeal
should have been heard by a manager not involved in the case and Jon
should have been permitted to have been accompanied to that appeal
hearing. The outcome should be confirmed to Jon in writing and Kempston
Kennels should have acted consistently and fairly throughout.

4. The remedies available to Jon should he succeed in an unfair dismissal claim

include re-engagement which would mean that Kempston Kennels must
offer Jon a comparable job to the one that he lost. Another potential
remedy is re-instatement which means Kempston Kennels must give Jon his
old job back. The most common remedy is compensation. This involves a
basic award which is calculated by reference to age, length of service and
pay.

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5. (a) Sanjay is entitled to receive a written statement/statement of
particulars within two months of starting work under S.1 Employment
Rights Act 1996. Sanjay’s employer is in breach of this obligation as
Sanjay has been employed for three months.

(b) This could include the name and address of employer and employee,
place of work, notice period, pay, sick pay entitlement, holiday pay
and hours of work.

Scenario 2 Questions

1. The first potentially fair reason for dismissal relevant to George is

incapability. George has an implied duty to adapt to new technology. He has
had training on the new system and he has access to further on-line
practice which he refuses to use. His failure means he is incapable of doing
the job as a complaints handler. A second potentially fair reason is
misconduct/gross misconduct. George has an implied duty to obey
reasonable and lawful orders. George has been rude to customers and did
not deal with the telephone complaint.

2. The requirements set out in BHS v Burchell (1978) relate to the procedure
that an employer must follow when investigating a misconduct case. Karen
must establish that she has a genuine belief in George’s guilt. She must
have reasonable grounds for that belief. Karen’s belief is based on the
conversation with the customer. She must have carried out as much
investigation as is reasonable. Here, Karen should have spoken to George
and checked the telephone recording system and Karen has not complied
with these requirements.

3. Josh would have a potential claim for direct discrimination under s.13 of the
Equality Act 2010 on grounds of sex which is a protected characteristic
under s.10. It requires that an employee is not subject to less favourable
treatment. Here, the dress code requires men to tie long hair back but not
women. This issue was discussed in the case of Smith v Safeway plc (1996)
which found that it was lawful to apply different specific rules to men and
women; for example in terms of tying long hair back, provided the overall
impact of the dress code on each sex is similar. This does not amount to
sex discrimination.

4. (a) Lydia would have a potential claim under s.19 of the Equality Act 2010
for indirect discrimination on the grounds of sex. This is a protected
characteristic under s.10. Indirect discrimination arises where the
employer applies a provision, criteria or practice (PCP) which here,
would be the decision to introduce a night-shift. The PCP must put a
particular group at a disadvantage. Here, it would be women, who are
the group who tend to be primary carers. The PCP must put this
individual at a disadvantage.

Here, Lydia cannot do the night shift because she is a single mum with
child care issues. Finally the employer must show that the PCP cannot
be shown to be a proportionate means of achieving a legitimate aim.
There is no indication of a defence on the facts.

4. (b) Remedies for discrimination claims are set out under S.124 Equality
Act 2010. These include a recommendation that Kempstons Insurance
takes a particular course of action. It also includes a declaration of

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 Lydia’s rights. Another remedy is compensation for injury to Lydia’s
feelings based on the Vento v CC of West Yorkshire Police (2002)
guidelines.

Scenario 3 Questions

1. Melissa could bring a claim under S.13 of the Equality Act 2010 for direct
discrimination on the grounds of sexual orientation. This is a protected
characteristic under s.12. Here, Melissa suffers less favourable treatment
when Joel refuses to bake a wedding cake for her. She could also bring a
claim under s.26 of the Equality Act 2010 for harassment. This is unwanted
conduct that violates dignity and creates an intimidating and hostile working
environment. This occurs when Joel tells Melissa, in a busy shop, that she
and Nicole are disgusting and should be ashamed of themselves.

2. Under S.136 Equality Act 2010, the burden of proof in a discrimination claim
is initially upon the claimant who must establish a prima facie case. The
burden then shifts to defendant to prove that discrimination did not take
place.

3. (a) To succeed in a claim for wrongful dismissal Joel would need to

establish that he was dismissed with no notice, inadequate notice or
without PILON. Kempston Cakes may successfully defend the claim if
they can prove that summary dismissal was justified, and summary
dismissal may be justified if an employee repudiates their contract of
employment. An employee is under an obligation to follow reasonable
and lawful orders. Joel may be in breach of this duty by refusing to
bake the cake.

(b) (i) The courts are the County Court, the High Court and the
Employment Tribunal.

(ii) Joel would be entitled to receive damages/compensation equal to

his notice period and any other contractual benefits.

4. These include the duty to provide personal service, which may also include
to exercise care in performing duties. The duty of obedience means that an
employee must obey all reasonable orders. The duty of good faith means
that the employee must work in the employers best interests, for example,
accounting to the employer for profit made.

5. The Working Time Regulations 1998 (WTR 1998) entitle an employee to a

20 minute break after 6 hours of work and Melissa may have a claim as she
has been working 12 hours a day with no break. The WTR 1998 imposes a
maximum 48 hours work per week although the employee can opt out of
this. Melissa appears to have a claim as she has been working 60 hours per
week, there is no evidence of her opting out and she has been working this
number of hour for over 17 weeks (the reference period).

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